Published: July 18, 2008 09:16 pm      

Citizens seek court intervention for recall election

BLUEFIELD — Members of the Concerned Citizens for a Better Bluefield took their fight for a recall election to court Friday.

The group filed a writ of mandamus petition seeking a court order to compel action by the city Board of Directors on a recall petition. The city board had previously rejected the document, arguing it didn’t meet the legal requirements of a recall petition.

“I expect the citizens rights to due process will be upheld,” Blaine Braithwaite, a member of citizens groups, said. “It is a United States constitutional right. Amendment 1 of the United States Constitution. It is a right of citizens under the West Virginia constitution, and a right of the citizens of Bluefield under their charter.”

The petition was filed Friday in Mercer County Circuit Court, a court clerk confirmed.

Braithwaite said the court order directs the defendants — including City Solicitor John Feuchtenberger, Mayor Linda Whalen, and board members Pete Sarver, Ron Crabtree, Mary Frances Brammer and Jim Bailey — to show cause on or before 1 p.m. on Aug. 28, as to why the writ of mandamus should not be granted.

A recall petition containing the names of 232 signatures was presented to the city on June 30, but later rejected by the city Board of Directors. The citizens group is seeking a new election, and alleges the board has violated and continues not to comply with state statues, specifically the Open Government Meetings Act. The petition also argues the board has not created a comprehensive plan for job creation, job retention, cost efficient ways to deliver city services and adequate recreational facilities for youth and other citizens.

Feuchtenberger said the document in question didn’t meet the legal requirements of a recall petition. After reviewing the document, Feuchtenberger said earlier this month that he determined it would be unnecessary and “a complete waste of time” to take the document to the county clerk’s office for verification.

The failure of the city to act upon the recall petition — as required under the city charter — is a denial of due process, Braithwaite said. Braithwaite said the citizens group is in the process of collecting more signatures for the recall petition that will be amended to the original recall petition.

“By not processing it (the original recall petition), and not allowing us 10 days to amend it, they are denying due process,” Braithwaite said. “You can’t just say I’m not going to do it because I don’t agree with it. It just doesn’t work that way.”

Feuchtenberger, when contacted Friday by the Daily Telegraph, hadn’t received the court order. Feuchtenberger said Braithwaite filed the petition on a Friday knowing that city officials wouldn’t receive the order for another three days.

“It was my advice to the clerk that it wasn’t a petition, and she didn’t need to act on it,” Feuchtenberger said. “She wrote him a letter and told him that. That is the end of our obligations as required by the charter. All the issuing of a petition for a writ of mandamus does, and Judge Sadler signing the order merely directs the city to answer. It doesn’t mean he (Sadler) has pre-judged the petition or anything like that. I’m going to look forward to showing to the judge just how bad that petition is, and the lack of concern by the citizens for a concerned government, or whatever their name is.”

Feuchtenberger said he probably wouldn’t be served the petition until Wednesday, adding he didn’t think the sheriff of Mercer County would spend all weekend looking for him and the five board members.

Mayor Linda Whalen, who was also unaware of the court filing Friday, said the court petition was an “irresponsible act,” adding the whole process was a waste of the city’s time and resources.

“We intend to send this (recall) petition to the prosecuting attorney because we do not feel based upon the signatures we were given that this has any validity,” Whalen said. “To begin with it doesn’t even have the number of signatures required. It is obvious one person has signed many of the signatures. There are any number of items that are incorrect.”

Braithwaite said he received a letter from City Clerk Helen Mitchell on July 15 indicating the city wouldn’t process the recall petition. Braithwaite said the letter gave three reasons for the board not taking action. They were insufficient signatures, non-original signatures and non-qualified signatures.

“Of course the point of contention is we’ve always felt there was significant signatures for them to initially process the petition,” Braithwaite said. “The charter defines that after they come up with their report we have another 10 days to amend the petition.”

Braithwaite said the group is hoping to have a new election soon, and well before the next scheduled city elections in 2009. Braithwaite said the city elections also should be changed to be held on presidential election years. By having the city elections on non-presidential years, Braithwaite said the voter turn-out is lighter.

— Contact Charles Owens at cowens@bdtonline.com